In this week’s Freedom Minute, CFIF’s Renee Giachino discusses the U.S. Supreme Court’s decision to hear the lawsuits challenging the constitutionality of ObamaCare and raises questions about Justice Elena Kagan’s apparent bias in favor of the health care reform law.

Today’s Senate vote to confirm Elena Kagan to the U.S. Supreme Court was unsurprising because a majority of senators had already committed their “Yea” votes. Curious, though, was the support of Senator Judd Gregg (R-NH). You may remember that Gregg was the man who turned down President Barack Obama’s offer to be Commerce Secretary, and then set about hammering the Obama Administration’s fiscal profligacy.

He also opted not to seek reelection after his term ends next January. Here’s Gregg’s statement on why he voted for Kagan:

Senator Gregg stated, “The Senate’s duty to provide advice and consent on Presidential nominations to the Supreme Court is one of its most significant constitutional responsibilities. Separate and distinct from its legislative function, the confirmation process requires the Senate to put aside politics and conduct a frank and evenhanded review of the nominee’s record, qualifications and demonstrated ability to apply the law in a fair and impartial manner.

“I have met personally with Solicitor General Elena Kagan, reviewed her record, and followed her testimony before the Senate Judiciary Committee. During this process, Ms. Kagan has pledged that she will exercise judicial restraint and decide each case that comes before her based on the law, with objectivity and without regard to her personal views. She also has served the American people under two different administrations and has a strong legal academic background. She is qualified to serve on the U.S. Supreme Court.

“Ms. Kagan and I may have different political philosophies, but I believe that the confirmation process should be based on qualifications, not ideological litmus tests or political affiliation. I will vote for her confirmation.”

Please. Kagan served in two Democrat administrations and published three articles in nearly two decades as an “academic.” The only qualifications Kagan has to be an Associate Justice is a Harvard law degree and an uncanny ability to land jobs for which she has no preparation.

Earlier today, the Senate began its floor debate on the confirmation of Elena Kagan to serve a lifetime appointment on the United States Supreme Court. Judiciary Committee Ranking Republican Jeff Sessions did one heck of a bang up job laying out the case againsther confirmation during his opening statement.

Sessions stated that Kagan’s record leaves “no doubt what kind of judge she would be: An activist, liberal, progressive, politically-minded judge who would not be happy simply to decide cases, but will seek to advance her causes under the guise of judging.”

Watch Senator Sessions’ opening remarks, which highlight everything you need to know about Elena Kagan, in their entirety below.

Who else but quixotic Senator Lindsey Graham (R-SC) would use the following justification?

Sen. Lindsey Graham, R-S.C., broke with his party to cast the sole GOP “yes” vote on President Obama’s nominee to succeed retiring Justice John Paul Stevens. The vote was 13-6.

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy I disagree with,” Graham said. “She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely.”

Is it wise to support someone you fundamentally disagree with, and who you think will misinterpret the Constitution? Is it honorable to vote one way in committee, and then flip-flop when the vote is before the full Senate?

And make no mistake; Graham did this because he’s trying to curry favor with the Obama Administration on another deal. Already President Barack is using the fig leaf of Graham’s lone Republican “Aye” vote to claim Supreme Court nominee Elena Kagan has “bipartisan” support.

In an interview with CFIF, Ed Whelan, president of the Ethics and Public Policy Center, discusses what makes for a truly great Supreme Court Justice and the nomination and confirmation process as it relates Elena Kagan.

As the confirmation hearings for Elena Kagan, President Obama’s nominee for the U.S. Supreme Court, proceed, Pulitzer Prize-winning cartoonist Michael Ramirez sums up her testimony before the Senate Judiciary Committee.

• In Federalist 45, James Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

• Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?

• Is there anything novel about the Arizona law empowering police officers to act on a “reasonable suspicion” that someone encountered in the performance of the officers’ duties might be in the country illegally?

• The Fifth Amendment mandates “just compensation” when government uses its eminent domain power to take private property for “public use.” In its 2005 Kelo decision, the court said government can seize property for the “public use” of transferring it to wealthier private interests who will pay more taxes. Do you agree?

• Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo Plessy v. Ferguson’s 1896 ruling that segregating the races with “separate but equal” facilities is constitutional?

The whole piece is worth reading (especially for two extended quotes in which Chief Justice Roberts excoriates Kagan’s legal reasoning from the bench). But what may be most provocative is this little nugget:

Kagan’s hostility toward the plain meaning of the 1st Amendment is nothing new. In a 1996 paper (PDF) for the University of Chicago Law Review (she was a professor at the University of Chicago at the same time that Barack Obama was a lecturer there), Kagan suggested that the government’s motives in restricting speech should be important factors in whether those restrictions are upheld by a court. She wonders aloud, in eye-opening Socialist language “what view of the 1st Amendment accounts for the court’s refusal to allow, by means of restrictions, the redistribution of expression?”

You read that right; she said “redistribution of expression.”

She continues: “The question remains, however, why the court should treat as especially suspicious content-neutral regulations of speech—such as the regulations in Buckley—that are justified in terms of achieving diversity.” You can already hear her ruling in a sure-to-come challenge to the re-imposition of the Fairness Doctrine meant to muzzle talk-radio conservatives in the guise of increasing “diversity of opinion”.

Similar to her argument in Stevens which implies a government arbiter of speech, Kagan makes this remarkable statement in her paper: “If there is an ‘overabundance’ of an idea in the absence of direct governmental action—which there well might be when compared with some ideal state of public debate—then action disfavoring that idea might ‘unskew,’ rather than skew, public discourse.”

What Supreme Court nominee Elena Kagan lacks in the way of academic writing, she (apparently) more than compensates for with her lawyerly output during her time in the Clinton White House Counsel’s Office. Recalling that former President George W. Bush shared over 50,000 pages of material associated with now Chief Justice John Roberts’s time as a lawyer in the Reagan White House, Byron York of the Washington D.C. Examiner reports which way precedent points in divulging Kagan’s work product.

“There is now a precedent that a White House lawyer’s materials will be produced,” says Bradford Berenson, an associate counsel in the Bush White House. “I think it will be very difficult for the Obama administration, given everything they’ve said about transparency and openness, to withhold these documents.”

Before anyone starts salivating over the thought of reading thousands of legal memos, remember that the current Oval Office occupant is not inclined to share information. Unlike President Bush, Obama can’t be bothered to take a single question from the press after signing the Freedom of the Press Act.

No, President Barack Obama’s Supreme Court nominee is not moonlighting as a shill for the latest John Grisham novel. Instead, a law review article of hers peddles the notion that federal courts should try to divine a government’s “intent” when deciding whether a regulation on speech is constitutional.

In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

You’d probably need a complex framework to figure out the single intent of a law that results from a process including hundreds of people, all with different backgrounds, educational levels, and points of view. Indeed, the exercise is a legal fiction whose use stretches back to the New Deal Court where justices poured over legislative histories, committee reports, and floor statements in the vain attempt to arrive at one, definitive purpose. Discovery of that purpose enabled the enlightened justice to then judge whether that purpose was proper.

You can see the potential for abuse. If judges signal they will go beyond the plain text of a law to discern its intent, then members of Congress and the President will do everything they can to shade the law’s meaning their way. Vapid floor statements, detailed presidential signing statements, even carefully worded statements of purpose in sub-committee reports suddenly become more important than the actual words that everyone agreed to.

And who gets to pick the “right” document for finding the government’s intent? None other than an unelected, un-consulted judge. Nice work if you can get it. We’ll see if Elena Kagan does.

Following up on Ashton’s excellent post yesterday, one of the most salient facts about President Obama’s new Supreme Court nominee, Elena Kagan, is her total lack of a track record. This is not to indict Ms. Kagan for her lack of judicial experience –– more than a third of the justices in the Supreme Court’s history have come from outside what Patrick Leahy refers to as the “judicial monastery” (a phrase too sterling to have been coined by a U.S. Senator — at least in the era since Daniel Patrick Moynihan’s passing).

Rather the issue is — apart from Harvard Law’s ROTC scandal while she served as dean– that Kagan doesn’t seem to have an observable opinion on anything. As CNN and New Yorker legal analyst Jeffrey Toobin — a friend of Kagan’s since law school — observed upon news that she would be the nominee:

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.

What Toobin regards as personal anecdotage, however, the New York Times’ always interesting (and often perplexing) David Brooks sees as pathological. As he says in the coda of today’s column:

What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

As Ashton mentioned yesterday, the same criticism could be equally applied to the pre-presidential Obama. But this isn’t just the provenance of the left. John Roberts presented much the same sort of blank slate prior to his elevation to the Court. And those already clamoring for a Marco Rubio presidential bid are running the same risk.

Consent of the governed is a meaningless concept when the governed aren’t told what they’re consenting to. If the Kagan nomination is a further indication that we’re living in an age of empty political vessels, the country will be worse off for it.

Admit it; the headline isn’t impossible to believe. It’s even less surprising to realize that all of the major criticisms of the Manchurian Candidate-turned-President – lacks relevant experience, a paper trail, or any notable accomplishment aside from self-promotion –are being lodged against his most recent Supreme Court nominee Elena Kagan. Sure, as an Assistant White House Counsel, former Harvard Law dean, and Solicitor General she’s held some important positions. But a light scrubbing of that parchment is revealing almost no key accomplishments with any of them.

After reading all of Kagan’s scholarly publications in two decades as an academic – three law review articles, two small essays, and two brief book reviews – law professor Paul Campos makes this observation about its quality in The Daily Beast:

At least in theory Kagan could compensate somewhat for the slenderness of her academic resume through the quality of her work. But if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan’s scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it’s unlikely to offend anyone in a position of power.

How Obama-esque. Until, that is, ultimate power is achieved and the offending can begin in earnest.

Apparently, President Obama’s penchant for dithering is contagious. Solicitor General and potential Supreme Court nominee Elena Kagan has failed to respond to the Court’s request for a brief describing the Administration’s view on another Arizona immigration law. (This one fines employers for hiring illegal immigrants.) Now that the U.S. Chamber of Commerce is fast-tracking an appeal of the Grand Canyon State’s newest attempt to enforce federal law, Kagan very likely won’t be able to ignore taking a side.

Surprisingly, though, the former Dean of Harvard Law School has written or said scarcely anything about law in her two decades as a legal academic. From the L.A. Times Supreme Court reporter David Savage:

She does not have a record as a judge or legal advocate, and she did not write widely on legal topics, potentially making it difficult for Republicans to oppose her if she is nominated.

Shouldn’t such a statement knock her out of contention?

So far, all we know about Kagan is that she has establishment Ivy League credentials, holds fashionable elite positions, knows the right people, and is a member of a favored Democratic minority group. Apart from a vague reputation as a “consensus builder” at Harvard, she barely has a year under her belt as an appellate advocate. Isn’t it a little early to promote her?

C’mon; it’s not like she’s running for President of the United States – this is important!

According to a book review she wrote back in 1995, Supreme Court short-lister Elena Kagan wants to judicial nominee hearings to get back to the good ole’ days of Robert Bork. As reported by ABC News:

Kagan argues that the Bork hearing should be a “model” for all others, because even though it ended in the candidate’s rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

“The real ‘confirmation mess’ ” she wrote, “is the gap that has opened between the Bork hearings and all others.”

“Not since Bork,” she said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.”

“The debate focused not on trivialities,” she wrote, but on essentials: “the understanding of the Constitution that the nominee would carry with him to the Court.”

At bottom, Kagan called for an open, “educative” process that put differing constitutional philosophies under the microscope. I’m all for it; so too are most conservatives. It will be interesting to see if and when Kagan is nominated by President Barack Obama to fill the next vacancy if she still thinks that way when it’s her turn to defend her views.

After all, Bork was the last nominee to make it to the hearing room and not be confirmed.

The Cato Institute, a libertarian think-tank in Washington, D.C., is challenging a federal criminal statute on the grounds that Congress acted without constitutional authority when it passed the law.

Cato and other challengers in Comstock argue that the federal government cannot use the Necessary and Proper Clause in Article 1 §8 of the Constitution to justify any and all federal action. The government, on the other hand, argues that the Necessary and Proper Clause and the Commerce Clause in §8 allow the government to enact a range of federal criminal statutes, even if such laws are typically the province of state power.

Of course, by the government’s logic, if the Commerce Clause works to authorize a broad array of criminal laws, then what can’t the government do? Since the government deems almost any human action to “substantially affect interstate commerce,” then there is nothing that evades federal power. For example, in this argument audio clip, the government claims federal power is virtually limitless.

The Supreme Court has (unfortunately) already held that growing excess wheat for private consumption falls within the Commerce Clause, and that growing marijuana for private consumption falls within the federal purview as well. (Justices Scalia and Kennedy sided with the government in the latter case.)

As the Cato Institute argued in its brief, “Neither the Necessary and Proper Clause nor the Commerce Clause is a permissible footing for the Act and, therefore, the Act is unconstitutional. As this Court recognized almost 150 years ago, ‘[no] graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,’ than the Government’s unconstitutional assertion of power against its own citizens.”

Elena Kagan, in the government’s reply brief, countered, “A commitment under Section 4248 [the act in question] is justified by the Necessary and Proper Clause in combination with whatever enumerated power or powers supported the federal prosecution and custody of the individual in the first instance.”

By June of next year, we’ll learn if the Court would prefer returning to “first principles.” It could actually limit Congress’ expansive use of Article I § 8, or the justices could continue to allow unbridled federal action whenever the government deems it politically expedient.